Federal officials must return 264 nudist magazines that they had seized
under federal obscenity laws because the magazines clearly do not meet the
legal definition of obscenity, a federal appeals court panel has ruled.

In March 1998, customs officials in Jersey City, N.J., inspected a
shipment of two large boxes to book distributor Alessandra's Smile Inc.
Officials discovered the boxes contained French and German nudist
magazines.

The magazines contained numerous photos of nude persons, including male
and female minors, in naturalistic settings.

The U.S. Attorney's Office in New Jersey determined the magazines were
obscene and instituted seizure-and-forfeiture proceedings to take
possession of the materials.

In March 1999, Alessandra's Smile filed a motion seeking return of the
property. In December 1999, U.S. District Judge Joseph A. Greenaway
determined the materials were legally obscene and could properly be seized
by government officials.

On appeal, a three-judge panel of the 3rd U.S. Circuit Court of Appeals
unanimously reversed in United States v. Various Articles of
Merchandise, Schedule No. 287.

As had the district judge, the 3rd Circuit panel examined the materials
under the test for obscenity articulated by the U.S. Supreme Court in its
1973 decision Miller v. California. Under the Miller test,
material is obscene if:

An average person, applying contemporary community standards, finds
that the work, taken as a whole, appeals to a prurient interest —
defined as a shameful or morbid interest in sex.

An average person, applying contemporary community standards, finds
that the material depicts or describes, in a patently offensive way,
sexual conduct specifically defined by state law.

The material, taken as a whole, lacks serious literary, artistic,
political or scientific value.

"We are of the firm conviction that the District Court clearly
erred in finding that these magazines appeal to the prurient interest
because they contain photographs of nudist children around the world
engaged in activities typical of children," the 3rd Circuit panel
wrote in its Oct. 23 opinion.

The panel also determined that the lower court erred in determining
that the pictures in the magazines were patently offensive or lewd.

"Moreover, in our opinion, even a most conservative,
straight-laced, and puritanical viewer of the photographs could not
reasonably claim that the photographs are 'lewd' or that they give the
impression that the subjects are 'sexually unchaste or licentious,' "
the panel wrote. "All of the photographs are of smiling, happy and
playful subjects, and none can be deemed lewd by any standard."

The panel noted that the seized materials were not as sexually
provocative as the images in David Hamilton's photography book Age of
Innocence, which the government had not claimed was obscene.

The panel wrote that "the tone and situation of the photographs in
the (naturalist) instant magazines are entirely non-sexual, and the
photographs contain none of the sexually provocative elements that are
present in Hamilton's photographs."

The 3rd Circuit panel also determined that the magazines qualified
"for First Amendment protection because of their political
value."

The magazines are political, the panel said, because they represent the
nudists' alternative lifestyle and their desire to bring about
"political and social change."

The panel ordered the government officials "to take all necessary
steps to restore the seized magazines" to Alessandra's Smile.

Eugene Nathanson, attorney for the book distributor, said: "I am
pleased that the 3rd Circuit judges were more offended by the government
officials seizing the materials than by the content of the materials.
Hopefully, after this decision, at least in the 3rd Circuit, government
officials will be less rabid about seizing materials that they think might
somehow qualify as child pornography or obscenity."

Civil rights now protect minorities of race, religion, and sex, but
there is one minority that government is attacking without regard to civil
liberties and Constitutional rights: naturists.

Naturism is the philosophy of living in harmony with nature. This
includes an affinity and respect for wildlife and the natural environment,
an attempt to live a healthy lifestyle with natural foods, and the
acceptance of the human body as naturally good and wholesome, hence a
rejection of the culture of lust and shame regarding the nude human body.
The latter belief by itself is, of course, nudism, the belief that there
is nothing wrong with not wearing clothing, and a lifestyle that includes
nudity.

The nudist movement has centered on private nudist clubs and resorts,
while the naturist movement has focused on nude beaches, springs, and back
yards. Both nudism and naturism have been under increasing attack by the
so-called "religious right," and laws are being passed
nationwide prohibiting nonsexual nudity even inside one's home.

Civil asset forfeiture, the confiscation of property without trial or
conviction, is even being proposed as a weapon against the practice of
nudity even in enclosed private property. In Arkansas, it is illegal even
to advocate in favor of nudism.

Nudity is a prime example of a possibly offensive but victimless state
of being. It is not even an activity or act, since it is not behavior, but
simply the absence of clothing. The nude and the naked should therefore be
protected by civil rights and liberties, including natural rights, freedom
of expression, freedom of religion, freedom of association, and private
property rights.

Of course, most folks don't want naked people to walk down the street.
But anti-nudity laws extend way beyond this to prohibit nudity in one's
property and even inside one's own house, and some places make it illegal
to be nude in the company of a child even at home. In some place, breast
feeding is treated as a crime. Art depicting nonsexual nudity is banned in
some places, and many shops that develop film routinely destroy any film
that depicts nudity, and if a child is shown nude, no matter how innocent
the context, the shop reports it to the authorities.

Even in a liberal city such as Berkeley, California, the law extends to
any nudity in "public view," which includes not only nude use of
back-yard hot tubs, but even inside one's house if there is a window
through which someone could possibly look. One man in Ohio was arrested
because someone across the street using binoculars could see him nude
inside his house, and in Florida, a child was taken from a woman who was
dancing nude in the presence of her child because one could see her by
looking up the closed Venetian blinds.

In Berkeley, a recent trial for public nudity ended in a hung jury. The
Berkeley police have since then enforced the anti-nudity law as an
infraction, like a traffic ticket. Unlike felony and misdemeanor cases,
infractions are fines that cannot be tried by a jury. A court case on
April 13 resulted in a dismissal of the charges, because the Berkeley law
was enacted as a misdemeanor. The Berkeley City council is now considering
whether to change the law to make it an infraction. This would be a bad
precedent, since the policy of infractions could be used to stifle any
protests and free speech and the freedom of movement and association by
fining it without any jury trials.

Nudity has already been used as an excuse for governments and private
parties to shut down nudist camps and resorts as a real- estate grab. A
private nudist resort in Los Angeles fought the government for years
against those trying to grab the property, and in Virginia, a nudist camp
was opposed by Madison County and finally shut down. Madison has a
totalitarian law making it illegal to do anything the government has not
declared legal!

In Tennessee, a law has been proposed allowing a group of ten people to
declare skinny dipping a nuisance and have it halted. In Kentucky, nudist
clubs and resorts must register with the government, and the government
refuses to register them, thus effectively banning nudism. In many states,
anti-nudity laws have been passed on the basis of outlawing pornography
and commercial nude dancing and performances, but the language of the law
has also banned the practice of nudism by families at home or in social
naturist clubs.

In Alabama and Florida, bills to apply RICO - Racketeer Influenced and
Corrupt Organization - laws have been introduced to eliminate naturism.
RICO allows the government to confiscate property that is only indirectly
used in an offense. Hence, if you drive a nudist to a nude beach, your car
can then be confiscated. Not only that, but people who file complaints
against nudists are allowed to win penalties of up to $40,000 upon
conviction. With this bounty, zealous anti-nudists and those who are just
greedy can get rich seeking out skinny-dippers.

In California, another weapon in the war against nudity is being
considered. The California Senate is considering SB 1859, a "local
option" law that would let local governments determine their own
"community standards," replacing the current state-wide
standard. Naturist and nudist publications depicting nudity in a
non-sexual context, or even a photo of one's naked baby in a bathtub,
could be classified as obscene by the local standard. Electronic
communications and web sites showing non-sexual nudity, such as people at
a nude beach, would become criminal in that locality.

Such laws are being pushed and passed throughout the United States
because most folks are not nudists or naturists, and think it does not
affect them. But these laws are not only unjust to nudists and naturists,
but set terrible precedents against free expression and private property
rights. Anti-nudity legislation is a foot in the door to the suppression
of all our rights and liberties.

(U-WIRE) AUSTIN, Texas - Nudist Texan youth will have a long way to
travel for summer camp if a recently filed bill is passed.

The bill's author, State Rep. Bryan Hughes (R-Mineola) said he wants
nudist youth camps outlawed in Texas, although he isn't aware of any
currently operating.

Hughes decided to write the bill because he heard the American
Association for Nude Recreation was planning to expand into the state in
2005. He said he opposes the camps because they allow nude children to
be unsupervised by their parents.

"It's a real dangerous situation," he said.

Hughes called the camps "magnets for pedophiles," and said he
is concerned about youths' own abilities to behave responsibly in a nude
environment.

Edward Moss, owner and manager of Bluebonnet, a nudist resort in Alvord,
Texas, said, "The whole idea behind the nudist parks in this
country is to promote family unity."

While the membership at his resort consists mostly of couples, he said
there are some families with children.

Moss attribute the recent bill to ignorance on the part of legislators.

"The critics assume if there's nudity, it's a nasty thing, an
immoral thing and should be banned," Moss said. "It's not for
everybody, but we should be free to raise kids as we see fit."

The American Association of Nude Recreation now operates three youth
camps nationwide, according to the Rev. JoAnne "Elf" Pessagno,
marketing director at Lake Como Family Nudist Resort in Lutz, Fla.

The camp at Lake Como is the oldest of the three, founded by Judy
Grisham in 1992. The yearly camp runs for one week in June, during which
supervised campers participate in such activities as volleyball,
mini-golf, "capture the flag" and campfire sing-a-longs.
Pessagno, who worked at last year's camp, described one game called
"pudding toss."

"Before you know it, everyone is covered in pudding, and then they
jump in the lake and rinse off," she said.

The camp culminates in a spaghetti dinner and a "Sunny and Bare"
talent show for parents.

For children raised in nudist families, the camps provide an opportunity to meet
people their own age of similar backgrounds and interests.

"The kids love it. They come back year after year," said Bob Roche,
manager and president of White Tail Park in Virginia and president of AANR-Eastern
Region. "It gives them a great place to enjoy themselves and meet new
friends."

The camps take careful measures to prevent misconduct, and according to Roche,
they haven't had any problems. The park is secure, he said, and campers are
supervised by both a male and female counselor at all times. All counselors have
been recommended by a local nudist club, plus an elected official of the AANR.
Many are graduates of Nude University, a camp and counselor certification
program for 18- to 25-year-olds. After interviews, applicants are subject to
police background checks.

A
three judge panelof the
U.S. Third Circuit Court ruled on October 23, 2000, that hundreds of seized
magazines containing nude photographs are not obscene. The ruling overturned a
determination by a U.S. District Court Judge that the magazines violated a
federal law that forbids the import of obscene materials.

In rendering its opinion, the court went beyond the return of the confiscated
magazines. It declared that the magazines deserved First Amendment protection
because of their "political value."

The ruling of
the judicial panel involved Alessandra's Smile, a New Jersey distributor and
importer of the two magazine titles
that made up the shipment seized by government inspectors. Jeunes et Naturels
is a French language photo-periodical printed in the United Kingdom, and Jung
und Frei is a UK-printed pictorial magazine for which the sparse text is
printed in German. As perhaps may be guessed from their titles (Young and
Natural and Young and Free), the two magazines are predominantly
filled with pictures of youngsters, almost all of whom are nude. Even a cursory
check of promotional material associated with Alessandra's Smile leaves little
question of the target audience for Jeunes et Naturels and Jung und
Frei.

[For a naturist's critical review of these two magazines and related matters,
see the 1997 article "A Great Disservice" by Mark A. Nisbet, reprinted from
Nude & Natural magazine, issue 16.4.]

Judge Garth compared the contents of Jeunes
et Naturels and Jung und Frei to those of Naturally magazine,
a naturist magazine offered for comparison by attorneys for Allesandra's Smile,
in part because it is published in New Jersey.

Having determined that the material was not obscene under at least
one prong of the three-pronged Miller test, the Circuit Court could have
reversed the District Court's decision and stopped there. However, because the
judicial panel realized that its decision would have First Amendment
implications, it completed its analysis of the other two prongs.

The Circuit Court examined the photographs in
the seized magazines for any depiction of "a lewd exhibition of genitals," which
would constitute "sexual conduct" as defined by the Supreme Court in Miller and
by the New Jersey legislature. The Court noted that the publications contained "
many photographs of nude women and girls, and several of these photographs show
the subjects' pubic areas." However, the Court correctly discerned that "none of
the photographs of females, no matter their age, show their genitalia."

Male genitalia are of course more visible, but
even in the photographs of men and boy, the Court declared that "[t]he fact that
their genitals are visible is incidental to their being nude." The opinion said
that genitals exposed in pictures of mere nudity "are neither being 'exhibited'
nor 'shown off.'"

The third prong of the Miller Test has to do with the literary,
artistic, political, or scientific value of the material. Alessandra's Smile had
argued on appeal that the magazines have such value because "[i]n places w[h]ere
legislatures or governments may wish to curtail social public nudity on
designated beaches, photographs provide the best 'case' that the nudism and
naturism consist of normal activities engaged in by normal people."

The Third Circuit Court panel agreed.

"These magazines," Judge Garth wrote, "qualify
for First Amendment protection because of their political value. The term
'political' which we employ here is broad enough to encompass that which might
tend to bring about 'political and social changes.' Nudists are members of an
alternative community, and the magazines champion nudists' alternative
lifestyle, which lifestyle the nudist community may feel is in danger of being
curtailed by government regulation."

The importance of this decision must not be understated. A panel of the U.S.
Third Circuit Court has affirmed the political value and protected status of
publications that include photographs of nude adults, teenagers and children. In
addition to reaffirming that nude is not lewd, the decision specifically
underscored the constitutional legitimacy of our effort to prevent the
mischaracterization and subsequent prohibition of our lifestyle and recreational
choices.

An
example: Whether or not the Third Circuit Judges knew of a recent legislative
effort in Nebraska, their decision speaks directly to it. In 1998 and again in
1999, the Nebraska legislature was asked to consider a bill that would have made
criminals of those possessing a "compilation" of more than just a few images of
nude children. (In 1998 that number was three; in 1999 the number was five.) NAC
played an important role in the defeat of the Nebraska legislation, but the
efforts of those opposed to the bill would certainly have benefited from the
Third Circuit Court's ruling in the Alessandra's Smile case.

The
Alessandra's Smile opinion governs federal judges in Pennsylvania, Delaware, New
Jersey and the U.S. Virgin Islands.

I had allowed myself,
quite frankly, to become encouraged by all the official talk of the necessity
for tolerance and the respect for diversity that came in the wake of the
horrible terrorist attacks in September. The U.S. Supreme Court, however,
determined that such sentiments need not be applied to naturists. On October 9,
2001, the Supreme Court let it be known, without further comment, that it was
not interested in hearing the appeal of a 1995 rule at Hippie Hollow Park in
Texas that suddenly prevented naturist parents from being accompanied by their
own children at the popular clothing-optional public park.

The High Court's refusal to hear the case wrote the final verse to a cause that
had been in the judicial system for more than six years. The intentional
inaction of the Court does not have the same legal effect as an adverse ruling,
but it will undoubtedly have an impact on family-oriented naturism for years to
come. Seen narrowly, a governmental unit imposed a local rule that prohibited
parents from involving their children in naturist activities on a specific unit
of public land, and that action was allowed to stand. Viewed more broadly,
naturism on public land has been successfully characterized as an adults-only
enterprise, unsuitable for children.

Hippie Hollow is a county-operated public park on Lake Travis, near the city of
Austin, Texas. The site has a long tradition of use by skinny-dippers and nude
sunbathers. The park is officially clothing-optional and includes signs placed
by the county in the mid-1980s that are a variation of the standard "Beyond This
Point You May Encounter Nude Sunbathers" wording.

The history of events leading to this culmination have been well chronicled in N
magazine and elsewhere. The short synopsis is that during Nude Recreation Week
in 1995, a tiny local civil liberties group sponsored a poster-making contest
for kids with a theme of "body acceptance." The idea was for kids to use poster
board and colored markers and crayons supplied by the sponsors. But the press
release arrived at local radio stations on a slow news day, and a couple of the
more outrageous deejays on a local country music station began portraying the
event as it never was intended. They claimed children would be forced to pose
nude for lecherous photographers who would enlarge the images to poster size.

That was a fabricated provocation intended to inflame the listening audience,
and it worked. The deejays told their listeners to call the sheriff and the
local prosecutor, and that's what they did. The county attorney, eager to
deflect attention from a seamy saga in his personal life that was beginning to
receive far too much press, picked up the situation and ran with it. It was the
"family values" issue he needed badly.

County Attorney Ken Oden initially contended that a nude adult in the presence
of a child or a nude child in the presence of an adult constituted the "sexual
performance" of that child. That view has never been endorsed by any other
attorney to whom I've spoken, but Oden found a clever way to keep it from being
tested. He pressured the county commissioners into adopting a park rule that
prevented children from being brought into Hippie Hollow.

It was the park rule that was challenged in court. Central Texas Nudists, a
small organization based in Austin, sued Travis County. My wife and children and
I were also plaintiffs.

After years of foot dragging, the county was finally forced into court in
November, 1999, but a local judge refused to grant a request for summary
judgment against the park rule. The following year, a state district court of
appeals declined to overturn the ruling. The Texas Supreme Court declined to
hear the appeal, and eventually, so did the U.S. Supreme Court.

The cost of the litigation was not trivial. The Naturist Action Committee and
the Naturist Education Foundation helped significantly, as did the American
Association for Nude Recreation, the Southwestern Sunbathing Association, the
Eastern Sunbathing Association, the Western Sunbathing Association, the Florida
Association for Nude Recreation and hundreds of individual naturists and nudists
from across North America. To these organizations and individuals, I express my
sincere gratitude. Every penny that was donated went to legal expenses; no
overhead expenses of any sort were ever taken from the contributed funds.

Meanwhile, the county seemed intent on showing that it could play hardball.
First came the ploy of assigning a different litigator to the case each time it
came due, so that the newly designated county lawyer could claim unfamiliarity
and ask for a continuance. But beyond that were what could only be characterized
as county-sponsored "dirty tricks."

Just two days before a
meeting we'd requested with County Attorney Oden to discuss a possible
settlement, the county actually sent a S.W.A.T. team to Hippie Hollow in a
display of force. An estimated seventy law enforcement officers, including
members of the Austin police force, descended on the park. The show included
police dogs, a helicopter and black-clad officers with automatic weapons.

When we refused to blink,
Oden said he was going to have to ask for a "little investigation" of my wife
and me. He did, and found nothing.

A sheriff's department
undercover sting operation at the park netted thirteen arrests for illicit
behavior. Most of those were later determined to have been the result of
entrapment. The sheriff went on television and reported the number arrested as
forty-two.

On the day we submitted a
motion for summary judgment in the case, a county lawyer called our attorney
at home at 10:30 p.m. that same day, asking if that's what we really wanted to
do and warning that "we can make it tough on your clients." The following day,
a county sheriff's deputy's car was parked in front of our house. For two
weeks, deputies parked there in shifts and followed our children through the
neighborhood.

I don't mention these things as a way of
polarizing naturists from law enforcement or the legal system. Nor do I bring
them up in an attempt to gain sympathy or to mitigate our losses in the judicial
system. Rather, I hope these facts will bring home to naturists the point that
we are truly in a battle for our rights! In the face of such opposition, we
allocate relatively tiny amounts of money to the defense of naturism.

In the course of the six years this case was in the courts, there have been
notable small moments that never made it into any of the hundreds of interviews
in various newspapers and on radio and television.

In an early court
appearance, my younger son Charles, who was then eight years old, noticed the
frieze of nude figures that ringed the upper walls of the courtroom in which
we sat, waiting for justice. In a whisper, he turned and asked me earnestly if
he was going to have to leave the room.

At one point, County
Attorney Oden sent a message to my wife Christine and me, saying it was
"nothing personal." Damn right it was personal! How much more personal can you
get than taking away a parent's right to raise a child with values of the
parent's choosing!

The case dragged on for
so long that my elder son reached legal age before the case was heard. Robert,
who was 14 at the time he was banned from Hippie Hollow, insisted on
submitting an affidavit of his own in support of the challenge to the county's
action that robbed him of four years at a place that was important to him.

I'm a little league
baseball coach. I've been open with the members of the team and their parents
about the naturist choices our family has made. Occasionally, when we've been
in the newspaper or on television, I've been curious about what the reactions
of the baseball parents would be. Not a one was anything but supportive.

Bob Cole, one of the
radio deejays who urged his listeners to "call the sheriff," is coach of an
opposing little league team. Each time my team would play his, I'd schedule my
son to pitch. I admit that seeing Charles strike out Cole's kid, Jason, was a
small consolation, but it was one that Charles and I enjoyed. Every single
time he faced him.

But what happens now? Well, the Supreme Court
let the county's rule stand, so the ban on families with children at Hippie
Hollow persists. Ken Oden himself once shared with me his further plan.

Oden told me:

(1)
He intended to characterize the clothing-optional park as an adults-only
enterprise by eliminating children. (2) Then he would show, by making arrests there, that it's a den of
iniquity. (3) Using existing laws applying to adult business, he would see Hippie
Hollow regulated out of existence as a clothing-optional venue. (4) He would expect to see his scheme applied to private nudist parks and
resorts.

Oden was not
kidding. The county attorney, who still has aspirations of one day being
appointed a federal judge, has apparently achieved the first of his goals.

"Aggressive" law enforcement and deceptive official reporting of the results
will go a long way toward meeting Oden's second goal. By eliminating families
with children, he has removed one of greatest natural mitigators to openly lewd
behavior and has attempted to create a self-fulfilling prophecy at Hippie
Hollow. Naturists who fail to speak up for important matters of beach etiquette
will accelerate the process.

So, do naturists give up? We do not! Although this is admittedly a devastating
setback, we continue to achieve significant victories. For our own part,
Christine and I will continue to imbue our children with naturist values and
educate them to have respect for the judicial system.

I admit that the justices of the U.S. Supreme Court have made that latter task
far more difficult by turning on their collective heels and ignoring us in the
Hippie Hollow case. Official pronouncements urging tolerance and diversity have
developed a decidedly hollow sound.